(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 6, 1997 -- Decided May 11, 1998
Pollock, J., writing for a majority of the Court.
After conducting public hearings in 1994 and 1995 on the State's civil service system, the Commissioner
of Personnel started two pilot programs for use in determining the eligibility of candidates for civil service
appointments. The first program increased from three to ten the number of names from which the appointing
authority could select a candidate from a civil service list. The second extended “working test periods” from
four to ten months. The Commissioner relied on a statute, N.J.S.A. 11A:2-11i, in promulgating the pilot
programs.
The Communications Workers of America (CWA) objected to the programs. In response, the
Commissioner stated that the pilot programs were a proper exercise of her authority under Section 11i. CWA
appealed the Commissioner's determination to the Appellate Division, which struck the programs down as
exceeding the Commissioner's statutory authority, as being inconsistent with express provisions of existing
statutes, and as having been adopted without complying with rule-making requirements.
The Supreme Court granted the petition for certification filed by the Department of Personnel (DOP).
HELD: The purposes underlying the Civil Service Act provide the Commissioner of Personnel with sufficient standards
to guide her exercise of authority under N.J.S.A. 11A:2-11i. The pilot programs established by the Commissioner are valid,
subject to the constraints of the Act.
1. The goal of the Civil Service Act is to secure the appointment and advancement of employees based on merit and abilities.
When establishing pilot programs such as those under review, the Commissioner may not act contrary to the goals of the Act.
These goals sufficiently channel the Commissioner's discretion, as does the one-year limit on the pilot programs and the
opportunity for judicial review. (pp. 5-7)
2. In seeking to effectuate the legislature's intent, the Court views the Act as requiring standards for the employee
appointment and selection process. The “Rule of Three” (permitting any candidate from among the top three on the list to
be selected for the position) can be modified appropriately during a test period. Even with a “Rule of Ten” under the pilot
program, the appointment must still be merit-based. In addition, the appointing authority must still provide reasons why a
higher-ranked candidate was not selected. Valid reasons can include experience, education, training, or superior
communication, managerial, or other skills that are not readily reflected in the examination scores. Furthermore, a Rule of
Ten provides the appointing authority with a greater ability to ensure equal employment opportunity and to create a more
diverse workplace environment. (pp. 7-12)
3. The Working Test Period pilot program retains a reasonable probationary period. Extending the period from four to
twelve months enables the appointing authority to make more informed decisions on appointments and affords appointees
more time to demonstrate their ability to perform the responsibilities of their new position. (p. 12)
4. The one-year limit on pilot programs under Section 11i begins to run when the Commissioner establishes a program.
To avoid confusion, the Commissioner should set a date by which the appointing authority may elect to participate in such
a program. The Court also notes that appointing authorities who request a pilot program are obliged to consult with affected
“negotiations representatives” before submitting the proposal. This does not mandate negotiations, but does require
discussion. (pp. 12-13)
5. In light of the statutory standards expressed in the underlying policy of the Act, the Commissioner did not exceed her
authority by trying out pilot programs without first conducting rulemaking hearings under the Administrative Procedure Act.
She can, however, conduct such hearings if she finds that they would aid her in the exercise of her statutory authority.
(pp.13-14)
The judgment of the Appellate Division is REVERSED.
JUSTICE HANDLER filed a separate dissenting opinion. He would affirm the judgment of the Appellate
Division substantially for the reasons expressed by that court. Section 11i and N.J.A.C. 4A:1-4.3 permit the Commissioner
to establish pilot programs by ignoring not only the requirements of Title 11A but also the Department of Personnel's own
rules.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, and COLEMAN join in JUSTICE
POLLOCK's opinion. JUSTICE HANDLER has filed a separate dissenting opinion, in which JUSTICE STEIN
joins.
SUPREME COURT OF NEW JERSEY
A-
88 September Term 1997
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO,
Appellant-Respondent,
v.
NEW JERSEY DEPARTMENT OF
PERSONNEL,
Respondent-Appellant.
Argued October 6, 1997 -- Decided May 11, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
299 N.J. Super. 166 (1997).
Lewis A. Scheindlin, Deputy Attorney General,
argued the cause for appellant (Peter
Verniero, Attorney General of New Jersey,
attorney; Joseph L. Yannotti, Assistant
Attorney General, of counsel).
Steven P. Weissman argued the cause for
respondent (Weissman & Mintz, attorneys; Mr.
Weissman and Judiann Chartier, on the brief).
Steven S. Glickman submitted a brief on
behalf of amicus curiae New Jersey Conference
of Mayors (Ruderman & Glickman, attorneys).
Gerald L. Dorf submitted a brief on behalf of
amicus curiae New Jersey State League of
Municipalities (Dorf & Dorf, attorneys; Mr.
Dorf and Sandro Polledri, on the brief).
The opinion of the Court was delivered by
POLLOCK, J.
Pursuant to N.J.S.A. 11A:2-11i (Section 11i), the
Commissioner of Personnel (the Commissioner) initiated two pilot
programs for determining the eligibility of candidates for civil
service appointments. The first program increased the number of
eligible candidates from three to ten, and the second extended
working test periods from four to twelve months. On the appeal
of the Communications Workers of America (CWA) under Rule 2:2-3(a)(2), the Appellate Division declared that the programs
exceeded the Commissioner's statutory authority.
299 N.J. Super 166. We granted the Department of Personnel's petition for
certification,
151 N.J. 75 (1997)
, and reverse the judgment of
the Appellate Division.
In addition to other powers and duties vested in the commissioner by this title or any other law, the commissioner . . . [m]ay establish pilot programs and other projects for a maximum of one year outside of the provisions of this title.
The proposed programs departed from provisions of the Civil
Service Act (Act), N.J.S.A. 11A:1-1 to 12-6. Ordinarily, a civil
service employer's selection of an employee is limited to the
three highest ranked eligible candidates ("the Rule of Three").
N.J.S.A. 11A:4-8. The first pilot program would expand the
number of eligible candidates from three to ten, thereby testing
a "Rule of Ten." As described by the Commissioner, the Rule of
Ten:
expands the list of people who can be hired
from a certification, giving more choices in
whom [the appointing authorities] can hire
and supporting their goal of diversifying
their workforce. At the same time, expanding
to a "rule of ten" provides opportunities for
more job candidates.
. . . .
In a nutshell, the "rule of ten" pilot
program will increase the minimum number of
names to be considered for selection from
three to ten. This means that a
participating appointing authority may
appoint any eligible among the top ten
interested and highest ranking eligibles on
the certification provided that veterans
preference rights are not affected. For each
participating appointing authority, the "rule
of ten" will apply to all certifications
generated from every open competitive and
promotional list, except for those lists
which involve public safety, titles, or when
special, regular and police and fire
reemployment lists are available.
. . . .
The requirements of N.J.A.C. 4A:4-4.8 still apply under the "rule of ten" when disposing of a certification. That is, the appointing authority shall provide a statement of the reasons why the appointee was selected instead of a higher ranked eligible or an
eligible in the same rank due to a tied
score.
The second pilot program, described as "Extension of
Working Test Period":
extends the on-the-job evaluation period
during which employers can assess candidates'
suitability for their jobs -- and during
which employees can demonstrate their fitness
for their positions through actual
performance of their duties.
Under the terms of this pilot program, all employees appointed
permanently by the state or local government appointing authority
are subject to a twelve month working test period. This program
tested an alternative to the Act's "Working Test Period"
provision, which provides for "[a] working test period following
regular appointment of four months, which may be extended to six
months at the discretion of the commissioner." N.J.S.A. 11A:4-15a; see also N.J.A.C. 4A:4-5.2 (establishing length of working
test period as three months for local appointments, not subject
to extension, and four months for state appointments, subject to
two-month extension at appointing authority's discretion).
The Commissioner solicited comments and conducted public
hearings on the pilot programs. The CWA objected to the
programs, asserting that they exceeded the Commissioner's
statutory authority. In response, the Commissioner stated in a
letter dated January 23, 1996 that the pilot programs represented
a proper exercise of her authority under Section 11i. The CWA
appealed to the Appellate Division under Rule 2:2-3(a)(2), which
provides for an appeal as of right "to review final decisions or
actions of any state administrative agency or officer."
While the CWA's appeal was pending, the Office of the Public
Defender requested and received approval from the Commissioner to
go forward with the two pilot programs. The Public Defender used
the Rule-of-Ten program to appoint in permanent positions three
Chief Investigators who had been serving provisionally in those
positions but who had not been qualified for a permanent
appointment under the Rule of Three.
The Appellate Division struck down the pilot programs. It
held "that the pilot programs exceed the scope of powers which
may be lawfully delegated under N.J.S.A. 11a:2-11i; violate its
plain language by administratively controverting and altering the
express provisions of existing statutes; and that they should not
have been adopted without complying with the rule-making
requirements of N.J.S.A. 52:14B-4." 299 N.J. Super. at 167-68.
constitutional and statutory responsibilities properly; (3) to
encourage and reward meritorious performance by employees in the
public service and to retain and separate employees on the basis
of the adequacy of their performance; (4) to ensure equal
employment opportunity at all levels of public service; and (5)
to protect career public employees from political coercion.
N.J.S.A. 11A:1-2. The goal of the Act is to secure the
appointment and advancement of civil service employees based on
their merit and abilities. Kelly v. Civil Serv. Comm'n,
37 N.J. 450, 456 (1962); Matter of Tavani,
264 N.J. Super. 154, 159 (App.
Div. 1993); see also N.J. Const. art. VII,
§
1, para. 2
(requiring civil service appointments and promotions to be made
according to merit and fitness). In striving to meet those
goals, the Act seeks to put civil service positions beyond
political control, partisanship, and personal favoritism. See
Falcey v. Civil Serv. Comm'n,
16 N.J. 117, 122 (1954);
Prosecutor's Detectives & Investigators Ass'n v. Hudson County
Bd. of Chosen Freeholders,
130 N.J. Super. 30, 41 (App. Div.),
certif. denied,
66 N.J. 330 (1974).
We hold that the purposes underlying the Act provide the
Commissioner with sufficient standards to guide her exercise of
authority under Section 11i. See Avant v. Clifford,
67 N.J. 496,
553 (1975) (recognizing that standards sufficient to guide
exercise of delegated power need not be expressly stated if they
may be reasonably inferred from statutory scheme as whole); Ward
v. Scott,
11 N.J. 117, 123 (1952) ("In dealing with the question
of standards it is elementary that we are not confined to the
specific terms of [the section] but must examine the entire act
in the light of its surroundings and objectives."). When
establishing pilot programs such as those involved in the present
case, the Commissioner may not establish a program contrary to
the goals of the Act. Those goals sufficiently channel the
Commissioner's discretion. See Township of Mount Laurel v.
Department of the Pub. Advocate,
83 N.J. 522, 533 (1980) (holding
"public interest" guidelines sufficient to guide public advocate
in exercising its delegated authority); Cammarata v. Essex County
Park Comm'n,
26 N.J. 404, 410 (1958) ("It is settled beyond
controversy that the Legislature may enact statutes setting forth
in broad design its intended aims, leaving the detailed
implementation of the policy thus expressed to an administrative
agency."). The Commissioner's authority under Section 11i is
also constrained by the requirement that each pilot program
conclude after one year. N.J.S.A. 11A:2-11i. Should a pilot
program established pursuant to Section 11i not conform to the
policy requirements outlined in the Act, an aggrieved party may
seek judicial review of the program. Judicial review serves as a
further check on the Commissioner's Section 11i authority. See
Mount Laurel, supra, 83 N.J. at 533; Burton v. Sills,
53 N.J. 86,
91 (1968).
Other civil service statutes and regulations also support
the Commissioner's authority to establish pilot programs under
Section 11i. For example, the Commissioner may "develop programs
to improve efficiency and effectiveness of the public service,
including, but not limited to, employee training, development,
assistance and incentives." N.J.S.A. 11A:2-11g. In addition,
the Commissioner may relax rules pertaining to civil service "for
good cause in a particular situation, on notice to affected
parties, in order to effectuate the purpose of Title 11A, New
Jersey Statutes." N.J.A.C. 4A:1-1.2(c).
The CWA argues that the pilot programs, by modifying
existing provisions of the Act, are not "outside the provisions
of this title," N.J.S.A. 11A:2-11i, and, therefore, are beyond
the scope of authority granted to the Commissioner under Section
11i. The Commissioner declines to read Section 11i so narrowly.
So narrow a reading would unduly restrict the Commissioner's
authority to establish innovative programs consistent with the
underlying purposes of the Act. See In re Felmeister & Isaacs,
104 N.J. 515, 546 (1986) (discussing use of pilot program as
testing and tentative probe of new ideas). In determining the
correctness of an administrative agency's interpretation of a
statute, courts may look beyond statutory language "to the
circumstances and objectives surrounding its enactment." In re
Adoption of N.J.A.C. 7:26B,
128 N.J. 442, 450 (1992); see also
P.F. v. New Jersey Div. Of Developmental Disabilities,
139 N.J. 522, 529 (1995) (approving deference to statutory interpretation
by administrative agency when interpretation does not clearly
conflict with intent of legislature). Such an examination in the
present case leads to the conclusion that the pilot programs
comport with the underlying purpose of the Act, to ensure an
efficient civil service system.
When interpreting legislation, courts seek to "effectuate
the legislative intent in light of the language used and the
objects sought to be achieved." State v. Maguire,
84 N.J. 508,
514 (1980); see also State v. Gonzalez,
142 N.J. 618, 627 (1995)
("[W]hen interpreting a statute, our overriding goal must be to
determine the Legislature's intent."); Kimmelman v. Henkels &
McCoy, Inc.,
108 N.J. 123, 129 (1987) ("In discerning
[legislative] intent we consider not only the particular statute
in question, but also the entire legislative scheme of which it
is a part."). The objectives of the Act are the creation of an
effective civil service system through the appointment and
promotion of employees based on merit and ability. Those
objectives need not depend on certifying only three employees for
each available position or on limiting an employee's evaluation
period to six months.
The Act is best understood as requiring standards governing
the appointment and selection process. So perceived, the Rule of
Three is important, not so much in its abstract numerical value,
but because it provides a standard that limits the appointing
authority's discretion. The number three is not a talisman. Cf.
Terry v. Mercer County Bd. of Chosen Freeholders,
86 N.J. 141,
151 (1981) ("[T]here is nothing intrinsic in the 'rule of three,'
either in a constitutional sense or as a matter of legislative
contemplation, that renders it totally impervious to reasonable
modifications or influences."). Consequently, the purpose of the
Rule of Three is to narrow the appointing authority's discretion,
not to eliminate it. Id. at 149; In re Crowley,
193 N.J. Super. 197, 214 (App. Div. 1984) (noting Rule of Three recognizes
discretion of appointing authorities). It follows that the
Commissioner, for purposes of a pilot program, may try a
different number during a test period. See Terry, supra, 86 N.J.
at 149-150 (noting Rule of Three "recognizes employment
discretion and seeks to ensure that such discretion is not
exercised in a way inconsistent with 'merit' considerations");
cf. Falcey, supra, 16 N.J. at 123 (noting Civil Service
Commission's power to waive competitive examinations where waiver
is not "arbitrary, capricious or unreasonable").
A pilot program based on the Rule of Ten is consistent with
the broad purposes of the Act and the specific goals of N.J.S.A.
11A:4-8. The Rule of Ten, although it broadens the pool of
qualified applicants, requires appointments to be merit-based.
First, an appointing authority is limited to the ten applicants
who ranked highest on the relevant civil service exam. Thus, the
civil service exam continues to play a central role in the
certification and appointment of applicants. Cf. N.J. Const.
art. VII,
§
1, para. 2 (requiring civil service appointments to
be made according to merit and fitness "to be ascertained, as far
as practicable, by examination, which, as far as practicable,
shall be competitive"). Second, the appointing authority remains
bound by N.J.A.C. 4A:4-4.8(b)(4), which requires it to provide a
statement to the Commissioner of the reasons why the appointee
was selected instead of a higher ranked eligible or an eligible
in the same rank due to a tied score. See Local 518, New Jersey
State Motor Vehicle Employees Union v. Division of Motor
Vehicles,
262 N.J. Super. 598, 605 (App. Div. 1993).
As the Public Defender explained in her letter to the
Commissioner, the implementation of the Rule of Ten enables the
appointing authority to appoint persons who, although not scoring
in the top three on the competitive exam, possess more
experience, education or training, or superior communication,
managerial, or other skills that are not readily reflected in the
exam scores. See Marranca v. Harbo,
41 N.J. 569, 576 (1964)
(suggesting that "the statutory plan may also rest upon a
conviction that no test can fully determine fitness"); see also
Cammarata, supra, 26 N.J. at 412 ("It is difficult to evaluate
the character, industry, personality, and responsibility of an
applicant from his performance on a written examination . . .
."); Falcey, supra, 16 N.J. at 124-25 (upholding appointment,
without examination, of employee with thirty-six years of
supervisory experience); Brown v. State,
115 N.J. Super. 348,
350-51 (App. Div.) (noting education and experience should be
considered when relevant in determining applicant's ability to
perform required duties of position), certif. denied,
59 N.J. 273
(1971). Finally, the Rule of Ten also provides the appointing
authority a greater ability "to ensure equal employment
opportunity at all levels of the public service," N.J.S.A. 11A:1-2d, and to create a more diverse workplace environment.
Similarly, the Working Test Period, N.J.S.A. 11A:4-15;
N.J.A.C. 4A:4-5.2, furthers the Act's purpose "to fill government
positions upon a basis of merit and fitness to serve" by creating
a probationary period of service during which time the appointing
authority can observe and evaluate the appointee. Devine v.
Plainfield,
31 N.J. Super. 300, 303 (App. Div. 1954). Like the
Rule of Three, the Working Test Period provides a reasonable
standard for the appointing authority. By limiting the
probationary period to twelve months, the Working Test Period
pilot program retains a probationary period that is reasonable.
The extended test period enables an appointing authority to make
more informed appointment decisions and offers appointees more
time to demonstrate their ability to perform the responsibilities
of their new position. Cf. Cammarata, supra, 26 N.J. at 412
(noting that "the crucial test of" applicants' fitness is how
they fare "on the job from day to day when suddenly confronted by
situations demanding a breadth of resources and diplomacy").
The conclusion that the two pilot programs rest within the
Commissioner's discretion derives in part from the recognition
that the programs may remain in effect for only one year.
N.J.S.A. 11A:2-11i; see also N.J.A.C. 4A:1-4.3(a). Moreover, we
interpret this one-year limit to begin running at the time that
the Commissioner establishes a program. We acknowledge a lack of
specificity in the word "establish." To avoid confusion in
future pilot programs, the Commissioner should set a date by
which the appointing authority may elect to participate in such a
program. We also note that appointing authorities who request a
pilot program must consult with affected "negotiations
representatives" before the submission of a proposal. N.J.A.C.
4A:1-4.3(c). This requirement, although it does not mandate
negotiations with the negotiations representatives, requires
notification of and, when requested, discussion with those
representatives. Compare Black's Law Dictionary 316 (6th ed.
1990) (defining "consultation" as "[d]eliberation of persons on
some subject"), with id. at 1036 (defining "negotiation" as
"process of submission and consideration of offers until
acceptable offer is made and accepted"); cf. Bethlehem Township
Bd. of Educ. v. Bethlehem Township Educ. Ass'n,
91 N.J. 38, 47-48
(1982) (holding regulation requiring "consultation" did not
preclude "collective negotiations" that were provided by
statute).
hearings if she finds that they would aid her in the exercise of
her statutory authority.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, and
COLEMAN join in JUSTICE POLLOCK'S opinion. JUSTICE HANDLER has
filed a separate dissenting opinion, in which JUSTICE STEIN
joins.
SUPREME COURT OF NEW JERSEY
A-
88 September Term 1997
COMMUNICATION WORKERS OF AMERICA,
AFL-CIO,
Appellant-Respondent,
v.
NEW JERSEY DEPARTMENT OF
PERSONNEL,
Respondent-Appellant.
HANDLER, J., dissenting.
In this case, the Appellate Division entered a judgment
invalidating the pilot programs that were adopted by the
Commissioner of the Department of Personnel. The Appellate
Division held that the pilot programs exceed the scope of the
powers that may lawfully be delegated under N.J.S.A. 11A:2-11i.
299 N.J. Super. 166, 167 (1997). I would affirm that judgment
substantially for the reasons set forth in the opinion of Judge
Landau.
The Court finds that "the purposes underlying" the Civil
Service Act (Act), N.J.S.A. 11A:1-1 to 12-6, "provide the
Commissioner with sufficient standards to guide her exercise of
authority under Section 11i." Ante at __ (slip op. at 6). The
Court's conclusion, however, disregards the fact that N.J.S.A.
11A:2-11i expressly and precisely authorizes the Commissioner to
establish pilot programs "outside of the provisions" of the Act.
The "standards" believed by the majority to be "sufficient" to
guide the Commissioner in the adoption of pilot programs are
those derived from the "provisions" of the Act; however, the
Commissioner's authority to experiment may be exercised outside
of those statutory provisions. The Court does not explain how it
can extrapolate from the statute standards that have already been
effectively removed. Further, N.J.A.C. 4A:1-4.3 permits the
Commissioner to establish pilot programs "outside of" the duly
adopted rules of the Department. Thus, as Judge Landau points
out, the Commissioner has "arrogated to herself the power to
ignore not only Title 11A but the Department's own rules." 299
N.J. Super. at 171.
In addition, the two cases the majority relies upon to
support its position, Avant v. Clifford,
67 N.J. 496 (1975) and
Ward v. Scott,
11 N.J. 117 (1952), are distinguishable from this
case.
In Avant, supra, inmates contended that the Legislature had
impermissibly delegated to the Commissioner of the Department of
Institutions and Corrections the power to define the nature of
imprisonment. 67 N.J. at 547. The challenged statute provided
in pertinent part that the Commissioner "shall have the power to.
. .determine all matters of policy and shall have the power to
regulate the administration of the institutions . . . within his
jurisdiction." Id. at 504 n.2 (quoting N.J.S.A. 30:1-12). In
upholding the constitutionality of the statute, the Court held that there was a "statutory pattern guiding imprisonment and corrections, within the well-charted confines of which" the Commissioner must fulfill his delegated mission. Id. at 554. This statutory framework included provisions concerning confinement as punishment (N.J.S.A. 2A:85-6) (repealed), discouragement of recidivism (2A:85-8) (repealed), rehabilitation by way of incentive (30:4-140), institutional work (30:4-92), work release (30:4-91.3), thrift (30:4-91.4), education (30:4AA-2) (repealed), parole (30:4-106) (repealed), mental health care (30:4-82) (repealed), hospitalization (30:4-7), transfer (30:4-84) (repealed), separation by age (30:4-147), compassionate leave (30:4-8.1), correspondence (30:4-8.3), consent for medical or psychiatric treatment (30:4-7.2), and the maintenance of the commissary (30:4-15). Id. at 548. Further, the Legislature had set up a framework of procedural safeguards. See id. at 512-13. Every State correctional institution was required to promulgate and publish rules and regulations governing the rights, privileges, duties and obligations of the inmate population. Ibid. The publications were required to set forth the authorized sanctions for classes of violations and detail the procedures for imposing punishment and appealing from the infliction thereof. Id. at 513. It was only "[with]in the context of that elaborate legislative scheme" that the Commissioner was allowed to exercise the authority given him. Id. at 549. It was "unthinkable that
the Department or Commissioner would or could depart from th[e]se
legislative strictures." Id. at 554.
In contradistinction, the challenged programs in this case
purposely depart from specific statutory requirements, i.e.
N.J.S.A. 11A:4-8 (establishing Rule of Three); N.J.S.A. 11A:4-15
(establishing length of probationary period), and are in no way
tied to any other legislative strictures. Further, far from
granting the Commissioner power that is "hemmed in" by
surrounding provisions in the statute, see Avant, supra, 67 N.J.
at 553 (internal citation omitted), the statutory basis for the
delegated authority expressly allows the Commissioner to act
"outside of the provisions" of the Act. See N.J.S.A. 11A:2-11i.
Finally, there are no procedural safeguards because N.J.A.C.
4A:1-4.3 allows the Commissioner to establish pilot programs
without having to adhere to the rule-making process set forth in
N.J.S.A. 52:14B-4 to -4.1.
The Court points out that the appointing authority "remains
bound by N.J.A.C. 4A:4-4.8(b)(4), which requires it to provide a
statement to the Commissioner of reasons" why a higher ranked
candidate was not chosen. Ante at __ (slip op. at 10). The
majority surmises that these reasons might include the lower
ranked candidate's greater "experience, education or training, or
superior communication, managerial, or other skills that are not
readily reflected in the exam scores." Ibid. However, reasons
of that character are not required by the statute and whether
such reasons would govern or influence the decisions of an
appointing authority is wholly speculative. Appointing
authorities should, but need not, take such grounds into
consideration . Decisional grounds that are not specified as
criteria in the statute, or in any regulation, or in the pilot
program itself, and cannot otherwise be clearly implied as a
required limitation on the exercise of discretionary authority,
may not be fashioned out of whole cloth to salvage a fatally
deficient delegation of statutory authority. The majority's
conclusion that such reasons will control the implementation of
experimental programs is wishful thinking.
This case can thus be contrasted with Ward, supra, wherein a
property owner challenged the validity of R.S. 40:55-39(d), a
statutory provision that permitted a board of adjustment to
recommend a variance "in particular cases and for special
reasons." 11 N.J. at 121. In upholding the statute, the Court
found that there were "ample safeguards" to prevent "unwarranted
or arbitrary action." Id. at 127. Chief among those safeguards
was the requirement that the board make "a specific finding of
special reasons within the contemplation of the" zoning law. Id.
at 126. Here, there is no such limitation; the Commissioner may
act for reasons that are not delineated and are "outside of" the
Act.
I would, accordingly, affirm the judgment of the Appellate
Division.
Justice Stein joins this opinion.
NO. A-88 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO,
Appellant-Respondent,
v.
NEW JERSEY DEPARTMENT OF
PERSONNEL,
Respondent-Appellant.
DECIDED May 11, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Handler